Court awards “peripatetic” plaintiff $213,449 in damages for soft tissue injuries

In reasons for judgment released earlier this week, the court in Welch v. Tietge, 2017 BCSC 395, awarded a somewhat nomadic plaintiff $213,449 in damages following a car accident in which she suffered soft-tissue injuries.  The plaintiff in Welch was 28 years old at the time of the accident and worked a series of bartending/service jobs following the accident.  In awarding $70,000 in non-pecuniary damages, and $100,000 for loss of future earning capacity, Mr. Justice Johnston wrote as follows:

[10]         Ms. Welch testified that she had always experienced anxiety, that it was not a daily occurrence, but if she became stressed, she suffered panic attacks. She occasionally took Ativan prescribed for this condition, but took no anxiety medication on a permanent basis. Ms. Welch testified that she had missed work as a result of anxiety before her accident.

[23]         Ms. Welch had cosmetic surgery in the form of breast augmentation on October 29, 2012, with Dr. Smith as her surgeon. She did not recall discussing recovery time with Dr. Smith, or being told to avoid heavy lifting after surgery, although she agreed that would make sense.

[79]         There is also the fact that Ms. Welch has led a somewhat peripatetic life between the accident and trial. She had developed a relationship with Mr. Shaw, who lived in Kelowna, before the accident. When the accident occurred, Ms. Welch and Mr. Shaw had separated, but the break was not so final that Mr. Shaw did not contribute to Ms. Welch’s cosmetic surgery at the end of October 2012, and send her money for living expenses from time to time. Even if there had been no accident, I find that it is probable that Ms. Welch’s income in the fall of 2012 would not have been significant.

[80]         The evidence is neither clear nor satisfactory as to how long Ms. Welch would have been unavailable to work as a care aide after her cosmetic surgery, as her own estimate of a month has a poor foundation, and there is no other evidence on the point. She would have been unavailable for some time in November 2012, however.

[81]         From early 2013, Ms. Welch’s employment would have been interrupted each time she moved: to Lloydminster, to Vancouver, to Calgary, to Vancouver, finally landing in Edmonton in September 2014. Some of these moves were driven by economics in that Ms. Welch could not earn enough as a bartender to live on her own in Vancouver. I am not persuaded that she would have been any more successful as a casual or on-call care aide, at least enough to avoid some of her moves.

[90]         Ms. Welch has made any attempt to assess damages for lost income between accident and trial so difficult that it is almost impossible. She has established that her injury has adversely affected her ability to work as a care aide, and has satisfied me on a balance of probabilities that there is some loss of earning capacity to trial for which she should be compensated. On the other hand, she is not entitled to recover damages for a loss which she could have avoided by acting reasonably, and I am persuaded that Ms. Welch has not acted reasonably in that she has not sought out or maintained employment she has shown herself capable of doing.

[92]         If, in assessing that loss, I inadvertently ascribe more earned income to Ms. Welch than she has actually earned, it will be because of her failure to properly record or report income from tips or aesthetician work.

[97]         Before the accident Ms. Welch’s low academic and vocational potential had limited her career opportunities. Her earnings potential lay more in the physical or service occupations than in those requiring intellectual capacities she did not possess. Working as a care aide was a good fit for Ms. Welch, but it was not the only field for which she was suited: she has worked in retail sales, in food and beverage serving jobs, and has been trained on-the-job to work as a laser technician, doing facials, hair removal and skin rejuvenation.

[108]     In assessing this head of damages, I repeat that Ms. Welch had a less than stellar work history before the accident, she demonstrated a willingness to change jobs to accommodate her personal life, and she gave up or lost jobs with some frequency. Her post-injury approach to employment has not been a great improvement. She has moved several times, again interrupting her employment. She has also appeared willing to have others support her rather than pursuing gainful employment she is capable of doing.

[111]     My assessment of Ms. Welch’s enthusiasm for work leads me to assess her future earning capacity loss, on the capital asset approach, at $100,000. In arriving at that figure, I have considered not only the usual contingencies, both positive and negative, that apply to such awards, but those peculiar to Ms. Welch, as revealed by the evidence

The full decision can be found here: